Local Union 354, IBEW

National Labor Relations Board - Board Decisions

Nov 29, 1972

200 N.L.R.B. 599 (N.L.R.B. 1972)

LOCAL UNION 354, IBEW 599
Local Union 354, International Brotherhood of Electri-
cal Workers, AFL-CIO and F G Johnson Compa-
ny, Incorporated Case 27-CD-139
November 29, 1972
II THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that IBEW is a
labor organization within the meaning of Section
2(5) of the Act
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by F G Johnson Company,
Incorporated, herein called Employer, alleging that
Local Union 354, International Brotherhood of
Electrical Workers, AFL-CIO, herein called IBEW,
violated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing
or requiring the Employer to assign certain work to
employees represented by IBEW rather than to
employees represented by Laborers Local Union No
79, herein called Laborers
Pursuant to notice, a hearing was held before
Hearing Officer Jerry C Legler on June 5, 1972 The
Employer and IBEW appeared at the hearing' and
were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues The Employer and
IBEW presented oral argument at the hearing in lieu
of filing briefs
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error They are hereby affirmed
Upon the entire record in this case, the Board
makes the following findings
I THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer is a Utah corporation engaged in concrete
core drilling, sawing, and breaking, and that its
annual gross volume of business with firms meeting
the Board's jurisdictional standards is in excess of
$50,000 per year Accordingly, we find that the
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it
will effectuate the purposes of the Act to assert
jurisdiction herein
1 Laborers despite adequate notice , made no appearance at the hearing
2 IBEW s contract with Wasatch effective January 1 1971 incorporates
by reference the areawide collective bargaining agreement between the
III THE DISPUTE
A Background and Facts
Wasatch Electric Company, herein called Wasatch,
is an electrical contractor at the Fashion Place Mall
in Murray, Utah In early spring 1972 Wasatch
engaged the Employer as a subcontractor to cut
chases or trenches in concrete for the installation of
electrical conduit The extent of the work to be
performed was not defined at that time, and work
was done on the basis of oral orders by Wasatch's
superintendent at the jobsite Wasatch's employees at
the jobsite were represented by IBEW, the Employ-
er's employees were unrepresented Article II, section
9(b), of the Wasatch-IBEW contract2 provides
The subletting, assigning or transfer by an
individual employer of any work in connection
with electrical work to any person, firm or
corporation not recognizing the IBEW or one of
its local unions as the collective bargaining
representative of his employees on any electrical
work in the jurisdiction of this or any other local
union to be performed at the site of the
construction, alteration, painting, or repair of a
building, structure or other work, will be deemed
a material breach of this agreement
Shortly after the Employer commenced work for
Wasatch, Les Miller, IBEW steward on the project,
asked the Employer's president, Ferral Johnson,
whether he had obtained union clearance Johnson
replied affirmatively 3 The following day Miller
advised Johnson that it was necessary to obtain
union clearance from IBEW Johnson and his sole
employee at the Wasatch jobsite that day then left
Several days later Johnson contacted Jack Anderson,
IBEW's business agent, seeking a resolution of the
matter Anderson informed Johnson that he would
have to consult with his International representative
Hearing nothing further from Anderson, Johnson
sent one of his employees, Steve King, to the project
several days later Upon receiving a telephone call
from King reporting that Miller had stopped him,
Johnson went to the project to speak with Miller
Miller again advised him that he had to have union
clearance from IBEW When Johnson stated he had
not obtained such clearance, Miller informed Was-
atch's supervisors, in Johnson's presence , that if
National Electrical Contractors Association inc , and IBEW
3 The record clearly discloses that Johnson was referring to a past
agreement with Laborers
200 NLRB No 92
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson's men were permitted to continue working
on the project, IBEW members would walk off the
job One of the supervisors then advised Johnson to
discontinue work until the matter was resolved
Johnson again contacted Anderson in an effort to
obtain clearance for the Wasatch work On February
24, 1972, Johnson and Anderson entered into a
proposed agreement which provided that the Em-
ployer would comply with the terms of the Wasatch-
IBEW contract Both Johnson and Anderson under-
stood this agreement was conditioned upon its
approval by IBEW's executive board Sometime later
Anderson advised Johnson that the executive board
had refused to ratify the proposed agreement
because the work had been "set aside for journeymen
electricians " The Employer's employees worked on
the project for several days afterward until Wasatch
informed Johnson that he could no longer work on
the project because he had failed to obtain IBEW
clearance
Wasatch presented testimony that it owns equip-
ment for the work in dispute and once a job is in full
swing it usually brings in its equipment and men
represented by IBEW In the initial phases of a
project, however, it will often engage a subcontractor
for reasons of economy Wasatch further testified
that it completed the disputed work with its own
employees because the project had progressed
beyond the initial stages
B The Work in Dispute
The work in dispute consists of concrete core
drilling, sawing, and breaking for the installation of
electrical conduit
C Contentions of the Parties
IBEW contends that this proceeding is not proper-
ly before the Board It argues first that because
Laborers has made no claim for the work, this case
does not present a dispute involving competing
claims which is necessary under Section 10(k) of the
Act It further takes the position that, as it was
merely seeking to enforce the terms of its collective-
bargaining agreement with Wasatch, its objective is
not proscribed by Section 8(b)(4)(D) Lastly, IBEW
contends that this case is moot because the work
which gave rise to this proceeding has been complet-
ed Alternatively, IBEW claims the work on the basis
of its collective-bargaining agreement with Wasatch,
area and industry practice, and an award rendered in
1926 by the National Joint Board for the Settlement
of Jurisdictional Disputes
The Employer contends that this proceeding is
properly before the Board and that the factors of
relative skills and efficiency and economy of opera-
tions favor an award of the disputed work to its own
unrepresented employees The Employer further
contends that its assignment is consistent with its
past practice and area practice
D Apphcabihty of the Statute
Before the Board may proceed with a determina-
tion of dispute pursuant to Section 10(k) of the Act,
it must be satisfied that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated, and
that there is no agreed-upon method for the
voluntary settlement of the dispute
As stated above, IBEW's steward advised Johnson
that the Employer would have to obtain IBEW
clearance to continue working on the project, and
subsequently threatened Wasatch personnel, in
Johnson's presence, that if the Employer continued
to work without such clearance IBEW members
would walk off the job Furthermore, IBEW's
business agent claimed the work for journeymen
electricians in a conversation with Johnson Based
upon the foregoing and the record as a whole, we
find that IBEW sought, at least in part, to force or
require the assignment of the disputed work to
employees represented by it, and, therefore, its
objective is proscribed by Section 8(b)(4)(D)
We find without merit IBEW's contention that
because Laborers has not claimed the work a
jurisdictional dispute does not exist Although the
charge alleges that IBEW sought to have the
Employer assign the work to members of IBEW
"rather than to employees represented by Laborers
Local Union No 79, to whom the work has been
assigned," in fact, Laborers did not appear at the
hearing and apparently does not claim to represent
the Employer's employees, and any prior contractual
relationship between the Employer and Laborers
seems to have been abandoned by both parties The
Employer's employees, however, continued to per-
form the work to the satisfaction of both the
Employer and Wasatch, until the Employer was
removed from the job It is well established that
Section 8(b)(4)(D) encompasses competing claims
between a union and a group of unrepresented
employees 4
Further, we find without merit IBEW's contention
4 N L R B v Radio & Television Broadcasting Engineers Union Local al Brotherhood of Electrical Workers AFL-CIO (Sarrow Suburban Electric
1212 [Columbia Broadcasting System] 364 US 573 574 (1961) Pipeliners Co Inc) 157 NLRB 715 719 International Brotherhood of Electrical
Local No 798 of the United Association of Journeymen and Apprentices of the Workers AFL-CIO and its Local 639 (Bendix Radio Division of The Bendix
Plumbing and Pipefitting Industry of the United States and Canada AFL-CIO Corporation) 138 NLRB 689 692
(Moon Pipeline Contractors Inc) 177 NLRB 872 874, Local 25 Internation
LOCAL UNION 354, IBEW
that since it was seeking to enforce the subcontract-
ing provisions of its collective-bargaining agreement
with Wasatch, its conduct was not for an objective
proscribed by Section 8(b)(4)(D) 5 We find that a
concurrent objective of IBEW in attempting to force
changes in the subcontracting arrangement between
Wasatch and the Employer was to force or require
the assignment of the disputed work to employees
represented by it rather than the Employer's unrepre-
sented employees The fact that one basis for IBEW's
claim was its contract with Wasatch does not detract
from the jurisdictional nature of the dispute 6
Relying upon the testimony of Wasatch's president
that the disputed work has been completed, IBEW
asserts that the dispute is moot Although the
particular work which gave rise to this proceeding
has been completed, the underlying jurisdictional
dispute has not been resolved We find, therefore,
that the dispute is not moot 7
The parties stipulated, and we find, that there is no
current agreed-upon method for the voluntary
settlement of the dispute to which both parties are
bound Accordingly, the matter is properly before
the Board for determination
E Merits of the Dispute
3 Area and industry practice
601
IBEW presented testimony that the vast majority
of concrete core drilling for the installation of
electrical conduit in the Salt Lake City area and the
industry has been performed by journeymen electri-
cians The record discloses, however, that most of
this core drilling work is performed by journeymen
electricians employed by large electrical contractors
The Employer presented testimony that several other
small firms specializing in concrete core drilling in
the Salt Lake City area use personnel not qualified as
journeymen electricians The evidence relating to
area practice is, therefore, inconclusive
IBEW further asserts that an award by the
National Joint Board in 1926 recognized the nation-
wide jurisdictional claim of its International to the
cutting of concrete for the installation of electrical
conduit Although that award is not binding on the
Employer, we consider it as a factor in determining
the proper assignment of the work in dispute
However, in view of all the circumstances, including
the absence of any showing in the record as to the
basis for the National Joint Board determination, we
are of the opinion that the National Joint Board
award should not be accorded controlling weight
Section 10(k) of the Act requires the Board to make 4 Relative skills and efficiency and
an affirmative award of the disputed work after
giving due consideration to various relevant factors
economy of operations
1 Certification and collective-barga ring
agreements
Neither of the labor organizations herein involved
has been certified as the collective-bargaining repre-
sentative for a unit of the Employer's employees The
Employer has no collective-bargaining agreement
with IBEW Although the Employer initially took the
position that it has a collective-bargaining agreement
with Laborers, it did not introduce such an agree-
ment into evidence at the hearing, and its president
testified that it does not currently abide by its terms
The factor of collective-bargaining agreements is,
therefore, not helpful to our determination
2 Employer's assignment and practice
The Employer, since it began operations in July
1971, has consistently assigned the work in dispute to
its unrepresented employees The Employer's prac-
tice, therefore, favors the Employer's assignment
Since the Employer began its operations, it has had
as few as one and as many as eight employees
Johnson prefers to make a personal selection of his
employees, as they are entrusted with the safekeeping
of the Employer's trucks and equipment overnight
Most of the Employer's employees have had no
prior experience in concrete core drilling Johnson
personally orients the employees to the operation of
the equipment over a period of 24 hours, and later
assigns them to more experienced men for 2 to 3
weeks of on-the-job training It is undisputed that the
Employer's employees possess the necessary skills
and experience to perform the work
The Employer's drills and saws are custom made
for 1-man operation Although the Employer con-
cedes that journeymen electricians would be capable
of operating these machines, it asserts that they
would need a few hours' additional training to
perform the work efficiently and to avoid damage to
the equipment IBEW adduced no evidence to
establish that it would be more efficient and
5 Cf Local 5 United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada AFL-CIO
(Arthur Vennert Company) 145 NLRB 1580 1589
6 United Brotherhood of Carpenters and Joiners of America Local No 753
AFL-CIO (Blount Bros Corporation) 175 NLRB 496 497
7 Cf Local Lodge 2040 of the International Association of Machinists and
Aerospace Workers AFL-CIO (Sterling Brewers Inc ) 172 NLRB No 230
fn 10 United Brotherhood of Carpenters and Joiners of America AFL-CIO
and its Agent Cecil Shuey (Wendnagel & Company) 116 NLRB 1063 1067,
United Brotherhood of Carpenters and Joiners of America Local 581 and
Horace Dagnan Its Business Agent (Ora Collard) 98 NLRB 346 348
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economical to utilize employees represented by it
We find that the factors of relative skills and
efficiency and economy of operations favor the
Employer's assignment
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that the Employer's unrepresented employ-
ees are entitled to the work in dispute We reach this
conclusion upon the following facts The Employer
assigned the disputed work to its employees, the
assignment is consistent with the Employer's past
practice and is not inconsistent with area practice,
the Employer's employees possess the requisite skills
to perform the work, and such assignment appears to
be both efficient and economical Accordingly, we
shall determine the dispute before us by awarding the
work in dispute at the Fashion Place Mall project,
Murray, Utah, to the Employer's unrepresented
employees In consequence, we also find that IBEW
is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require the
Employer to assign the disputed work to employees
represented by it
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute
1 The unrepresented employees of F G Johnson
Company, Incorporated, are entitled to perform the
work of concrete core drilling, sawing, and breaking
for the installation of electrical conduit on the
Wasatch jobsite at the Fashion Place Mall project in
Murray, Utah
2 Local Union 354, International Brotherhood of
Electrical Workers, AFL-CIO, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require F G Johnson Company, Incorpo-
rated, to assign the above work to employees
represented by it
3 Within 10 days from the date of this Decision
and Determination of Dispute Local Union 354,
International Brotherhood of Electrical Workers,
AFL-CIO, shall notify the Regional Director for
Region 27, in writing, whether or not it will refrain
from forcing or requiring the Employer, by means
proscribed by Section 8(b)(4)(D) of the Act, to assign
the work in dispute to employees represented by
IBEW, rather than to the Employer's unrepresented
employees